Citation Nr: 1748314	
Decision Date: 10/26/17    Archive Date: 11/03/17

DOCKET NO.  09-12 296	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUES

1.  Entitlement to a separate initial rating for right knee instability.  

2.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).

3.  Entitlement to special monthly compensation (SMC) under 38 U.S.C.A. § 1114(s).  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

D. Bassett, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February 1969 to February 1971 and June 1974 to January 1993.

This case is before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas.  

In February 2012, the Veteran testified at a Travel Board hearing at the RO before the undersigned Veterans Law Judge.  A transcript of that proceeding is of record.

In a February 2016 decision, the Board denied the Veteran's claims for an increased rating for the service-connected right knee arthritis, lumbosacral strain, and right hip disabilities, granted service connection for residuals of thyroid cancer, and remanded the issues of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) and entitlement to special monthly compensation (SMC).  The Veteran thereafter appealed the decision to the United States Court of Appeals for Veterans Claims (CAVC or Court).  While his claims were pending at the Court, the Veteran's representative and the VA Office of General Counsel filed a Partial Joint Motion requesting that the Court vacate the Board's decision and remand the case to the Board for further development and readjudication only to the extent that it denied entitlement to separate rating for right knee instability.  The denial of entitlement to a rating in excess of 10 percent for right knee arthritis was affirmed by the parties and dismissed by the Court in an Order dated in September 2016.  In the September 2016 Order, the Court also granted the Partial Joint Motion.  The case was then returned to the Board.  

The Board notes that the Joint Motion took specific issue with the Board's failure to award a separate rating for right knee instability.  The order vacates the part of the Board's decision denying entitlement to a separate rating for right knee instability and remands this issue to the Board.  The Court did not dispute any other part of the Board's decision, for instance the denial of a higher rating for the Veteran's service-connected right knee arthritis under Diagnostic Code 5099-5019 or any other diagnostic code.  As such, the Board has recharacterized the issue as written on the title page to address the Court's order.  

In December 2016 and March 2017, the Board remanded the case to the RO for further development and adjudicative action.

The issues of entitlement to TDIU and to SMC under 38 U.S.C.A. § 1114(s) are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

For the period on appeal, the Veteran's right knee arthritis manifested in slight instability, but not moderate or severe recurrent subluxation or lateral instability.  


CONCLUSION OF LAW

For the entire period on appeal, resolving reasonable doubt in favor of the Veteran, the criteria for a separate 10 percent initial disability rating for right knee instability have been more nearly approximated.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2016).



REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159(b).

The Veteran's claim arises from a disagreement with the initial disability rating that was assigned following the grant of service connection.  Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).

VA also has a duty to assist the Veteran in the development of the claim.  This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The Board finds that all relevant facts have been properly developed, and that all available evidence necessary for equitable resolution of the issue has been obtained.  The Veteran's service and post-service treatment records, VA examination reports, and lay statements have been obtained.

VA has associated with the claims folder records of the Veteran's VA outpatient treatment records, and he was afforded multiple VA examinations, including in June 2008, April 2010, August 2013, January 2017, and June 2017.  Taken together, these examinations are adequate to rate the Veteran's claim as the examiners discussed his medical history, described his disabilities and associated symptoms in detail, and supported all conclusions with analyses based on objective testing and observations.  Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  The Veteran has not reported that his right knee disability has worsened since the date of the latter examination.  A remand is thus not required solely due to the passage of time.  See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995).  

The agency of original jurisdiction (AOJ) substantially complied with the June 2017 remand orders, namely to obtain VA examination results compliant with the prior remand directives, and no further action is necessary in this regard.  See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).   

II.  Increased Ratings

Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R., Part 4.  Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized.  38 C.F.R. § 4.1. 

Legal Criteria

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements.  The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. § 4.40.

The factors involved in evaluating, and rating disabilities of the joints include weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); excess fatigability; incoordination (impaired ability to execute skilled movements smoothly); more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); less movement than is normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); or pain on movement, swelling, deformity, or atrophy of disuse.  38 C.F.R. § 4.45. 

In DeLuca v. Brown, 8 Vet. App. 202, 205 (1995), the Court held that, for disabilities evaluated on the basis of limitation of motion, VA was required to apply the provisions of 38 C.F.R. §§ 4.40, and 4.45, pertaining to functional impairment.  The Court instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, or incoordination.  Such inquiry was not to be limited to muscles or nerves.  These determinations were, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, or incoordination. 

Under 38 C.F.R. § 4.59, with any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to the affected joints.  The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased.  Flexion elicits such manifestations.  Although pain may cause a functional loss, pain itself does not constitute functional loss.  Pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). 

In determining the disability rating, VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Governing regulations include 38 C.F.R. §§ 4.1 and 4.2, which require the evaluation of the complete medical history of a veteran's condition.  Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran.  38 C.F.R. § 4.3. 

Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending and, consequently, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

For the entire rating period, the service-connected right knee arthritis has been rated at 10 percent under 38 C.F.R. § 4.71a, Diagnostic Code 5099-5019 as an unlisted disease rated by analogy to bursitis.  38 C.F.R. § 4.27.  Arthritis under Diagnostic Code 5019 is to be rated on limitation of motion of the affected part as degenerative arthritis. 

Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joints involved.  When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a . 

Diagnostic Code 5260 provides for a 0 percent rating when there is flexion limited to 60 degrees.  A 10 percent rating is warranted for flexion limited to 45 degrees.  A 20 percent rating is warranted for flexion limited to 30 degrees.  A 30 percent rating is warranted for flexion limited to 15 degrees.  38 C.F.R. § 4.71a.  Diagnostic Code 5261 provides for assignment of a 0 percent rating for extension limited to 5 degrees, a 10 percent rating for extension limited to 10 degrees, a 20 percent rating for extension limited to 15 degrees, a 30 percent rating for extension limited to 20 degrees, a 40 percent rating for extension limited to 30 degrees, and a 50 percent rating for extension limited to 45 degrees.  38 C.F.R. § 4.71a.  

Diagnostic Code 5257 contemplates "other impairment" of the knee including recurrent subluxation or lateral instability.  Under Diagnostic Code 5257, where impairment is severe, moderate or slight, disability evaluations of 30, 20, and 10 percent are assigned, respectively.  Diagnostic Code 5262 contemplates impairment of the tibia and fibula, assigning a 40 percent rating for nonunion of the tibia and fibula, and 10, 20, and 30 percent ratings for slight, moderate or marked knee or ankle disabilities.  The words "slight," "moderate," "severe," and "marked" as used in the various diagnostic codes are not defined in the VA Rating Schedule.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just" decisions.  38 C.F.R. § 4.6.

Under Diagnostic Code 5256, ankylosis of the knee that is in the favorable angle in full extension, or is in slight flexion between 0 degrees and 10 degrees, warrants a 30 percent disability rating.  Ankylosis of the knee in flexion between 10 degrees and 20 degrees warrants a 40 percent disability rating.  Ankylosis of the knee in flexion between 20 degrees and 45 degrees warrants a 50 percent disability rating.  Extremely unfavorable ankylosis of the knee, in flexion at an angle of 45 degrees or more, warrants a 60 percent rating.  A 60 percent rating is the maximum schedular disability rating available under Diagnostic Code 5256.  Ankylosis is the immobility and consolidation of a joint.  Lewis v. Derwinski, 3 Vet. App. 259 (1992).

Diagnostic Codes 5258 and 5259 provide for disability ratings when semilunar cartilage is dislocated and/or removed.  Specifically, a 10 percent rating is assigned for symptomatic removal of semilunar cartilage, and a 20 percent rating is assigned for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint.  Finally, a 10 percent disability rating is assigned under Diagnostic Code 5263 when genu recurvatum is identified.  

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25.  Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities.  38 C.F.R. § 4.14.  It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition.  Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). 

VA's Office of General Counsel has provided guidance concerning increased rating claims for knee disabilities.  VA's General Counsel stated that compensating a claimant for separate functional impairment under Diagnostic Codes 5257 and 5003 does not constitute pyramiding.  See VAOPGCPREC 23-97.  Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition.  See Esteban at 262. In VAOPGCPREC 9-98, VA's General Counsel reiterated that, if a veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, and there is also x-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59.

Right Knee Instability

The Court directed the Board in the September 2016 order to reconsider whether a separate rating for instability of the right knee was warranted.  Specifically, the Court found fault with the Board's failure to consider the competency and credibility of the Veteran's statements and also pointed to a January 2009 MRI in which the doctor who conducted the study noted right knee instability as the reason for the study.  

The Board finds that a separate rating of 10 percent for right knee instability is warranted.  However, a rating in excess of 10 percent is not warranted.  

The record does not support a finding that the Veteran's instability is moderate or severe.  As noted, a January 2009 MRI report indicates the reason for the study was an unstable right knee.  However, the impression given was no evidence of a meniscal tear or other internal derangement of the knee and minimal patellar cartilaginous degenerative changes.  Treatment notes from January 2010 indicate that the Veteran felt like his knee wanted to go out going down stairs.  He reported that he "does fine going up stairs."  At the hearing in February 2012, the Veteran reported that he had fallen twice in the last two years.  The Veteran reported to the June 2017 VA examiner that his last "bad" fall came two years prior and his last near fall occurred in December 2016.  The treatment notes confirm that the Veteran fell in October 2014.

Yet the VA examination testing results for instability in the Veteran's right knee have been consistently negative.  The June 2008 VA examiner detected no instability.  The April 2010 VA examiner detected no instability.  Stability testing at the August 2013 VA examination was normal.  There was no instability at either the January 2017 or June 2017 VA examinations.   As noted by the January and June 2017 VA examiners, the Veteran regularly uses a cane to ambulate.  

Based on this record, the Board cannot conclude that the Veteran's right knee instability is more than "slight."  The Veteran has reported falls related to instability yearly, or even less frequently.  The treatment notes do not indicate functional limitation due to instability that occurs more frequently than reported by the Veteran.  Further, the VA examinations show no objective evidence of instability in the Veteran's right knee.  Certainly, the Veteran's use of a cane for ambulation supports his claim of instability in the right knee.  But given the infrequency of the Veteran's falls and the lack of the objective evidence of instability at the VA examinations or in the treatment notes, the Board cannot conclude that the Veteran's instability is more than slight.  

In summary, the Board finds that the criteria are met for separate 10 percent rating for right knee instability for the entire period on appeal.  However, the Board finds that, during the period on appeal, the Veteran's right knee instability has not manifested as moderate (or worse) instability and the criteria for a rating in excess of 10 percent have not been met.  See 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5257.


ORDER

Entitlement to a separate rating of 10 percent for right knee instability is granted for the entire period on appeal, subject to the laws and regulations governing the payment of VA compensation benefits.


REMAND

The Board remanded the Veteran's TDIU and SMC claims in February 2016 with instructions to adjudicate these claims.  It does not appear as if the RO adjudicated these claims.  As there has not been substantial compliance with the February 2016 remand directives, another remand is necessary.  Stegall v. West, 11 Vet. App. 268 (1998). 

As mentioned in the February 2016 remand, it has been held that the receipt of a 100 percent schedular disability evaluation for a service-connected disability or disabilities does not necessarily moot the issue of entitlement to a TDIU.  Bradley v. Peake, 22 Vet. App. 280, 293-294 (2008) (resulting in revocation of VAOPGCPREC 6-99, which held that TDIU could not be considered if a claimant was already rated 100 percent for one or more disabilities).  Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, Bradley recognized that a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation under 38 U.S.C.A. § 1114(s) (West 2014).  Bradley, 22 Vet. App. at 293-94.  

It must be cautioned that a TDIU based on more than one disability does not satisfy the requirement under 38 U.S.C. § 1114(s) that a claimant have a "service-connected disability rated as total."  Buie v. Shinseki, 24 Vet. App. 242 (2011).  Similarly, multiple disabilities arising from a single incident that establish entitlement to a schedular TDIU under 38 C.F.R. § 4.16(a) may not be considered as one disability that satisfies that requirement of "a service-connected disability rated as total."  Bradley, 22 Vet. App. at 293.  A TDIU based on a single disability, however, does satisfy the requirement of "a service-connected disability rated as total" under 38 U.S.C. § 1114(s).  Id.  Moreover, VA's duty to maximize benefits requires VA to assess all of a claimant's disabilities, regardless of the order in which they were service-connected, to determine whether any combination of disabilities establishes SMC under 38 U.S.C. § 1114.

Additionally, where a TDIU claim is raised in connection with a claim for a higher rating, it is inferred to be part of that claim.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  The SMC claim must also be inferred as part of that claim.  Buie, 24 Vet. App. at 242.  

Accordingly, the case is REMANDED for the following action:

1.  Provide the Veteran with written notice regarding his potential entitlement to a TDIU rating and SMC under 38 U.S.C.A. § 1114(s), based on Buie and Bradley, cited above.  

2.  After undertaking any indicated development, adjudicate the claims for a TDIU rating, and SMC under 38 U.S.C.A. § 1114(s).  Specifically, for an award of SMC under that provision, the Veteran must have a "single service-connected disability" rated as total; this can be a schedular 100 percent or based on a TDIU rating, but the rating must be for a single disability (disabilities considered as one disability under 38 C.F.R. § 4.16(a) are not considered a "single disability" for this purpose).  Therefore, the RO must determine whether the Veteran has a single service-connected disability that renders the Veteran unemployable.  In addition, there must be other service-connected disability or disabilities rated 60 percent or more, separate and distinct from the service-connected disability rated 100 percent and involving different anatomical segments or bodily systems.  See 38 C.F.R. § 3.350(i).  

3. After the above development has been completed, adjudicate the claims.  If the benefits sought remain denied, provide the Veteran and his representative with a supplemental statement of the case, and return the case to the Board.  

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




______________________________________________
Michael J. Skaltsounis
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs